December 24 , 1999

Vermont high court rules
in favor of gay couples

Court stops short of marriage,
but lawmakers must grant all of its benefits

by Denny Sampson
with wire reports

Montpelier, Vt.-In a ground-breaking decision on December 20, the Vermont Supreme Court ruled that gay and lesbian couples must be given the same benefits and protections as opposite-sex married couples.

It is the first court in the nation to make such a sweeping ruling on the question.

Although the court did not legalize gay marriage, it instructed the state legislature to come up with a way to extend equal protections to same-sex couples.

"We hold that the state is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law," the justices said.

The court ruled that the state legislature will determine whether the benefits will be provided through marriage or domestic partnerships.

In the decision, Chief Justice Jeffrey L. Amestoy wrote, "The extension of the Common Benefits Clause to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity."

The court�s five justices ruled unanimously that the state must offer equal protection to same-sex couples, but disagreed on the solution.

Associate Justice Denise R. Johnson wrote a concurring dissent which argued that marriage licenses should be issued immediately.

She said the court recognizes that gays and lesbians are entitled to certain rights and "yet declines to give them any relief other than an exhortation to the legislature to deal with the problem."

Since the ruling was based on the state constitution, the decision cannot be appealed to the U.S. Supreme Court. Vermont has no other appeals court.

The court suspended the case, and retained jurisdiction to make sure that the Vermont Legislature acts on the ruling.

The court said the benefits that gay couples should get include access to a spouse's medical, life and disability insurance, hospital visitation and other medical decision-making privileges, spousal support, to be treated as an economic unit for tax purposes, to inherit from one another without a will, and take time from work to care for each other during an illness.

Mary Bonauto, co-counsel in the Vermont case and civil rights project director for Gay and Lesbian Advocates and Defenders, described the decision as "a legal and cultural milestone."

"The court recognized that same-sex couples need and deserve the same legal rights and protections other people take for granted," Bonauto said. "The court�s decision paves the way for more secure families and stronger communities."

Jay Sekulow, chief counsel for televangelist Pat Robertson�s American Center for Law and Justice, said the court "left open the possibility that we will see a marriage statute in Vermont . . . This is the first appellate court that has said there is a state constitutional right for same-sex marriage. It really represents a slap in the face for marriage between a man and a woman."

The decision was made on a lawsuit filed by three same-sex couples in July 1997, a gay male couple and two lesbian couples. The couples had been denied marriage licenses by their local town clerks. The three couples filed a lawsuit in Chittenden County Superior Court, but a judge rejected their claims in December 1977. The couples appealed to the state supreme court.

The supreme court heard oral arguments in the case in November 1998. The couples argued that, because they were unable to legally marry, they were unable to enjoy more than 300 benefits at the state level and more than 1,000 at the federal level. This violated the state constitution�s equal benefits clause, they said.

"We�ll be celebrating our 27th anniversary together in October. We look forward to the time when we can finally make it official," said Holly Puterbaugh and Lois Farnham, one of the plaintiff couples.

In order to meet the mandates of the Supreme Court, legislative leaders in Vermont, including Gov. Howard B. Dean (D), are already endorsing the idea of domestic partnership, instead of same-sex marriage.

"I frankly think it�s a better option for the gay community," Dean said.

For the most part, Dean has remained silent on the issue of same-sex marriages. However, he told reporters at a Burlington news conference that gay marriage "makes me uncomfortable, the same as anyone else."

In a later interview, he avoided a direct answer on whether he would veto legislation that legalized gay marriage.

"It�s not something the legislature will do," Dean said. "It�s just not going to happen."

However, Lieutenant Gov. Douglas Racine, and Michael Obuchowski, speaker of the Vermont House, have both voiced support for same-sex marriages.

"Realistically, I think a partnership bill is something we can pass," Senate President Pro Tem Peter Shumlin, D-Windham, told the Rutland Herald. "Obviously, marriage would be more difficult."

However, Rep. William Mackinnon, D-Sharon, a member of the House Judiciary Committee, said he believed there might be some benefits that only marriage law could provide.

"It�s hard to articulate, but there may be an emotional benefit, a psycho-social benefit that attaches to marriage," Mackinnon told the Rutland Herald. "If there�s a basic right here that�s being denied to Vermonters, we�d better damn well find what it is and remedy it."

A domestic partnership bill has already been introduced in the Senate, and the legislature could act on it this session. The session begins January 4, and ends April 15.

The justices said they would give the legislature "a reasonable period of time'' to act. They did not specify what that means.

While the decision will have no direct effect outside Vermont, the Vermont court�s opinion will serve as a "powerful and persuasive precedent throughout the country," Harvard Law School professor Laurence Tribe told the Boston Globe. "[It is] likely to carry a great deal of weight in other states," where similar court challenges may follow.

But U.S. Rep. Barney Frank said gay civil rights advocates should not push for change around the country faster than the public is ready to accept.

"It�s going to give us a chance to show the fallacy of the argument that allowing the same-sex couple to be legally as well as emotionally committed to each other somehow jeopardizes heterosexual marriage," Frank told the Globe. "Let�s let Vermont work this out and let the rest of the country benefit from the experience we see in Vermont."

The Vermont ruling comes 11 days after the Hawaii Supreme Court ruled that an anti-marriage amendment to the state constitution, passed by voters last year, overruled its earlier ruling in favor of same-sex marriage.

The Hawaii court ruled in 1996 that the state constitution�s sex discrimination clause required the state to give marriage licenses to same-sex couples unless it could show a "compelling reason" not to. A lower court later ruled that the state had failed to show such a reason.

As the case returned to the high court for a final ruling, voters passed an amendment to the state constitution allowing a ban on same-sex marriage. A similar case in Alaska also ended when voters amended the state constitution.

While the Hawaii and Alaska cases were in the courts, Congress and 30 states passed so-called ''defense of marriage'' laws, which extended existing bans on same-sex marriages to deny recognition of ones made in other states. Californians will vote March 7 on such a measure.

Mayor blocks Dayton
civil rights measure

by Eric Resnick

Dayton--Mayor Mike Turner used parliamentary rules to block the first reading of an amendment to add sexual orientation and source of income to the city�s non-discrimination ordinance.

Openly lesbian city commissioner Mary Wiseman is sponsoring the amendment, which was to have its first reading December 15.

The measure must have two public readings before it can be voted on. Turner�s maneuver bought the Christian-right opposition enough time to mobilize, which now makes passage very unlikely.

"Until today, I had the votes to pass it," said Wiseman on December 20, "but I was just notified that my three colleagues have started to bail out after having been contacted by large and influential churches."

Dayton is governed by a five-member commission. The mayor is a commissioner with no veto power. Turner�s core support comes from the religious-right community.

Turner maintains that extending civil rights protection on the basis of sexual orientation is not needed because "gays earn more income and have more education" than heterosexuals, concluding there is no discrimination.

Turner also objects to the ordinance on the grounds that there is no exemption for churches and religious organizations.

"The current ordinance does not insert exemption for anything other than size," said Wiseman.

Under the existing non-discrimination ordinance, in effect since 1979, employers with four or fewer employees are exempt. Churches are exempted from the housing provisions, but not the employment ones.

"This is an amendment to the current ordinance, so no other exemptions were written in," Wiseman said. "But nothing short of the removal of sexual orientation will be enough to satisfy the mayor."

The churches are raising biblical objections to the amendment. Speaking of remaining commissioners Dean Lovelace, Idotha "Bootsie" Neal, and Lloyd Lewis, Wiseman said, "They are now willing to support only a non-binding resolution on discrimination saying the city is against all forms of discrimination."

"The churches have told them they will organize around a referendum to repeal the amendment if it is passed, and speak out against them at election time," said Wiseman. "How can they be of good conscience when they say they know there is discrimination and they don�t do anything about it?"

Wiseman remains steadfast in her attempt to pass something, even though it might fall short of the original amendment and may jeopardize her chance of re-election in 2001.

"I will offer my three colleagues the church exemption, hoping it will be enough to win their vote," she said.

But the liklihood of passage is bleak, and Wiseman concedes, "If I have to settle for the non-binding resolution over nothing I will, even though it will put Dayton in an awkward position."

"I�m getting ready to do some horse trading," she said.

"What�s ironic here," said Wiseman, "is that my colleagues were willing to support my amendment when the opposition was coming from the mostly white churches in the suburbs. Now that mostly African-American churches in the city have been mobilized, they changed their minds. Those churches are percieved to be very powerful."

She added, "It�s also tragic that those who fought for civil rights in the past are closed to civil rights for others."

Wiseman has a strategy to address the churches using progressive clergy. "There is going to be pain on both sides," she said. "My colleagues will learn that they will upset progressives, including gays and lesbians if they vote with the churches."

Partner ordinance faces opposition

by Denny Sampson

Lakewood, Ohio--Although a proposed domestic partnership ordinance continues to have strong support, it is now facing opposition from city�s more vocal conservatives.

At a public meeting of City Council�s Rules and Ordinance Committee on December 15, supporters and opponents of the ordinance squared off in an impassioned debate over the measure. From an audience of roughly 45 people, 18 spoke against the ordinance and 10 spoke in favor. Three opponents were from the same family.

If approved, the ordinance will extend spouse-related benefits, such as health care coverage and bereavement leave, to domestic partners of city employees in this Cleveland suburb.

"The people that spoke against the ordinance represent a relatively small group," said Councilmember Michael Skindell, D-at large and chair of the committee. "Most of the citizens are very accepting of gays and lesbians, and support the ordinance. In fact, many people come to live in Lakewood because of its diversity and its prevailing attitude of acceptance."

During the meeting, Skindell discussed several proposed amendments to the ordinance, all in response to objections that had been made to the proposed law from previous testimony.

One suggested amendment would limit the law so that it would apply to same-sex couples only. Another would add the statement: "The ordinance by no means is redefining the state of marriage in Ohio. It is only an effort to extend benefits."

Critics of the ordinance want assurance that no one will get benefits unreasonably. Another amendment proposed in response would require a same-sex couple that is registering as domestic partners to sign an affidavit stating they meet the criteria "subject to the pains and penalties of perjury." Another proposed change would require employees who are voluntarily ending their domestic partnership to file a termination statement within 30 days.

Skindell emphasized that the policies outlined in this measure were developed by studying existing domestic partnership policies across the country, and selecting the more conservative ones for Lakewood�s ordinance.

During the December 15 meeting, many of the measure�s opponents said it was poorly publicized.

"I wasn�t aware of any publicity for the public meetings," said Judy Gillespie. "I think if people knew what was going on, they would be very concerned."

In response, Skindell listed several media in which he had publicized the meetings, including the daily Plain Dealer, the weekly Lakewood Sun Post, and two radio stations.

"Some people are trying to make it look like we tried to sneak this ordinance in through the back door, but nothing could be further from the truth. This ordinance has been put under greater scrutiny than most ordinances that come before the council," Skindell said.

Several opponents of the ordinance insisted that the measure should be taken directly to the citizens for a vote.

"We have a representative democracy," Skindell said the next day. "Voters elect us to decide on legislation like this. We have enough information to take it to council for a vote. If enough citizens don�t like the ordinance, a referendum is possible later."

Several individuals commented that they objected to their tax money being used to support a "lifestyle" they believe is immoral.

"This ordinance redefines marriage," said Ellen Malonis. "I am concerned about the message it gives to children. This ordinance will only make marriage weaker." Her husband and son also spoke against the measure.

Proponents pointed out that it was also their tax dollars.

"I have lived with my partner for 11 years, I have paid my taxes and supported all the levies," said Joe Valenti. "This ordinance is only fair."

Opponents also warned of costly legal challenges.

"We might get sued for not giving domestic partnership benefits," Skindell said. He pointed out that in Oregon, a city was sued for not giving domestic partnership benefits, and the Oregon Supreme Court found the city liable.

Skindell said he intends to ask Tim Downing of the Human Resource Bar Association to address legal concerns.

The Rules and Ordinance Committee, which consists of Skindell and Councilmember Edward Fitzgerald, D-at large, decided to have another public committee meeting to discuss the ordinance. That meeting is scheduled for 7 pm Monday, January 10.

The ordinance will not be brought to council for a vote until after this meeting.

The ordinance must pass three readings and be signed by the mayor to take effect. It was approved at its first reading at a vote of 5 to 2 last February, and at its second reading in November 6 to 1.

Skindell has been very confident that the ordinance would pass the council.

When asked how he felt about the meeting, Skindell said, "I was uplifted by the meeting. I heard lots of positive comments. It was one of the strongest efforts in favor of the ordinance we have had."

Mayor Madeline Cain said in an October interview with the Chronicle that she would support the measure.

"The more testimony I hear, the more convinced I am that this is the right thing to do" said Councilmember Nancy Roth, D-4, who co-sponsors the measure with Skindell. "I can�t predict passage, I don�t know what�s going to happen in the future, but I know that we are on the right track."

Fitzgerald made no comment about the ordinance, although he has previously supported it. Skindell is still optimistic that the ordinance will pass, but he recognizes that he is facing formidible opposition.

The Cleveland Lesbian-Gay Center is asking its 300 members in Lakewood to contact councilmembers and Mayor Cain to support the ordinance.

"We consider Mayor Madeline Cain, [and councilmembers] Pam Smith and Ed Fitzgerald swing votes," said center board president John Farina, "so we are encouraging our members to make a point of calling them."

If the ordinance passes, Lakewood would become the only Ohio city to give health coverage--the most costly benefit�to the domestic partners of city workers. Several Ohio cities grant minor benefits such as bereavement leave, said Skindell.

Columbus passed an ordinance one year ago to give health coverage to city workers� partners, but repealed it in February to avoid a referendum.

HRC head tells Clinton
to get rid of �don�t ask,� policy

by Eric Resnick

Washington, D.C.--President Clinton told a group of 50 gays and lesbians he wanted to take a close look at "don�t ask, don�t tell, don�t pursue" and make sure it�s implemented properly at a closed question and answer session following a speech sponsored by the Democratic National Committee December 17. Participants paid $10,000 per plate to meet with the president.

According to participant Elizabeth Birch, director of the Human Rights Campaign, "He told us what he�s been telling us privately for two years: that he doesn�t like the policy but it was the best he could get politically. The president called it institutionalized hypocrisy, and said it creates an atmosphere of secrecy that turns soldier against soldier."

Birch then challenged the president to repeal the law. But it is not that simple.

The law creating the military policy was passed by Congress in 1993. It will take an act of Congress to repeal it.

Stacey Sobel, an attorney for the Servicemembers Legal Defense Network, said the repeal of the law is unlikely at this point.

"People mistakenly believe that an executive order would change the policy," she said.

HRC spokesperson Wayne Besen clarified Birch�s remarks.

"She meant she wants the president to show leadership to repeal �don�t ask, don�t tell�," he said.

Both Sobel and Besen agree that it is unlikely that the Republican majority in Congress will take up the issue, despite a groundswell of public concern since the conviction of Pvt. Calvin Glover earlier this month for the gaybash murder of Pfc. Barry Winchell.

Sobel said even though the president can�t repeal the law, he has responsibility. "He is the commander in chief�" she said, "and the secretary of defense is his appointee."

Besen said HRC is pushing this issue "indirectly."

"We�re gearing up for elections," he said, "and this issue will be a high priority. We know this will not be addressed by Congress until after the election."

Sobel is critical of Secretary of Defense William Cohen�s order for the Pentagon to study how the policy has been implemented for 90 days.

"Everyone knows the problem.The time for study is long gone," she said. "In April of �98 they issued a study claiming everything was fine. This makes it look like they have just discovered some new issue, and it�s not so."

Sobel pointed out that gay servicemembers who live under the policy and know more about it than anyone else have not been given immunity by the Pentagon to tell what they know.

"Those who know how the policy really is will not come forward because it is telling," she said.

After �fag� remark,
man is pushed off train platform

by Denny Sampson

Cleveland--A gay man was assaulted at a Red Line rapid transit station located on the dividing line between Cleveland and Lakewood on December 9.

"It was about 2:45 in the afternoon," said the victim, who asked not to be named. "I was waiting for the rapid at the West 117th St. and Madison station."

The victim said that two young men joined him on the platform. They were making homophobic remarks, referring to gays as "fags."

The victim said, "One of them asked me, �Why are you carrying a purse?� and I said, �I belong to the gay community. I�m gay�."

After a heated verbal exchange, the victim said that one of the men, whom he heard the other address as Joe, left the platform and went into the station, saying, "I�ll let you handle this."

The other man allegedly forced the victim against the edge of the platform and pushed him.

"I landed on my face on the train track," the victim said. "I heard one of them say, �Let�s get out of here before the cops come.� The other said, �Let�s make sure the fag is dead.� Then I heard sirens."

The victim was taken to Lakewood Hospital in an ambulance. His wounds were treated, and he was released that evening.

Regional Transit Authority police spokesperson Linda Ciricik confirmed that there was an attack on December 9, a report was filed, and that the case had been referred to the detective unit. She said there was an investigation in progress to find the assailants.

Two other people, one an RTA employee, witnessed the attack.

According to the victim, both assailants were in their late teens to early twenties. Both were Hispanic, with medium build and short brown hair, and spoke with Spanish accents.